CC&R Reference Absent from Deed

An association’s “Declaration of Covenants, Conditions and Restrictions” (“declaration” or “CC&Rs”) is a recorded document setting forth the majority of the powers, rights and responsibilities of the association and its members. A developer creates and records CC&Rs as “equitable servitudes” against each of the separate interests within the association’s development. Equitable servitudes are essentially contractual restrictions on the use of land which are legally binding on current and future property owners. (Civ. Code § 5975.) The restrictions contained in  CC&Rs are “clothed with a very strong presumption of validity which arises from the fact that each individual unit owner purchases his unit knowing of and accepting the restrictions to be imposed.” (Villa de Las Palmas HOA v. Terifaj (2004) 33 Cal.4th 73, 90.)

Even where an owner’s deed to his lot or unit within the association’s development does not contain a specific statement that the owner’s property is subject to the CC&Rs, the owner may nevertheless be bound by the CC&Rs and obligated to comply with the restrictions contained therein. Some relevant California case law addressing this issue includes the following:

  • A nonspecific reference in a deed (subject to “all restrictions of record”) was held sufficient to create mutually enforceable equitable servitudes and the deeds need not contain a statement that they are subject to a “common plan” as long as the restrictions demonstrate the existence of such a plan. (Fig Garden Park No. 1 Homeowners Ass’n. v. Assemi Corp. (1991) 233 Cal. 3d 1704.)
  • The California Supreme Court has held that a prior recorded declaration bound the lots encumbered by the declaration, even though the deeds to the encumbered lots did not refer to the declaration. (Citizens for Covenant Compliance v. Anderson (1995) 12 Cal. 4th 345.)

Related Topics

Related Statutes

Related Case Law

  • Villa De Las Palmas Homeowners Association v. Terifaj
    (2004) 33 Cal.4th 73

    [CC&R Amendments; Binding Effect] CC&R amendments enacted by homeowners are accorded the same presumption of reasonableness as those imposed by developer; CC&R amendments are binding against both current and future homeowners.